Gennarelli v Cherkovsky

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[*1] Gennarelli v Cherkovsky 2017 NY Slip Op 51128(U) Decided on September 13, 2017 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2017
District Court of Nassau County, First District

Albert Gennarelli, Petitioner(s),


Iury Cherkovsky, Respondent(s).


Ezratty, Ezratty & Levine

Attorneys for Petitioner

80 Old Country Road

Mineola, New York 11501

(516) 747-5566

Howard B. Arber, Esq.

Attorney for Respondent

64 Hilton Avenue

Hempstead, New York 11550

(516) 538-0009

Timothy Kilgannon, Esq.

Guardian ad litem for Respondent

42-24 235th Street

Douglaston, New York 11363

(516) 746-5530
Scott Fairgrieve, J.

The following named papers numbered 1 to 2 submitted on this Motion to Dismiss on August 17, 2017

papers numbered

Notice of Motion and Supporting Documents 1

Order to Show Cause and Supporting Documents

Opposition to Motion 2

Reply Papers to Motion

Petitioner owns the premises located at 2561 Natta Blvd., rear cottage, Bellmore, NY. [*2]According to the holdover Petition, Petitioner rented the premises to Respondent commencing May 1, 2009, and ending on April 30, 2010. Thereafter, the Petition states, Respondent continued as a month-to-month tenant. It is alleged that a thirty-day notice of termination was served, ending Respondent's tenancy as of February 28, 2017.

At bar, is Respondent's motion, dated July 20, 2017, for an order dismissing the Petition. Respondent attaches the Lease, dated March 24, 2009, for the term starting May 1, 2009 and ending April 30, 2010, with a monthly rent of $1,300.00. The Lease provides the following in paragraph 8 of the Addendum:

"After one year period Tenant can remain in the house as long as Tenant needs, Tenant must be offered a renewal of the lease by Landlord."

Respondent's attorney states in his Affirmation dated July 20, 2017, that Respondent was never offered a renewal lease. Counsel further claims that "Petitioner has conceded that he never offered the Respondent a renewal lease." It is posited that the foregoing represents a violation of the subject lease.

Further, Respondent contends that an offer of a renewal Lease is a condition precedent to terminate the tenancy, which was never satisfied.

Regardless, Respondent argues that the Lease was extended for an additional year by the acceptance of the same rent for the last seven years:

"FOURTEENTH: Even if the lease did not contain the aforementioned provision it is submitted that the Petitioner's acceptance of the rent from the Respondent for the past seven (7) years following the expiration of the lease constitutes either an express or implicit extension of same upon the original terms, particularly since the Petitioner has accepted the same rent as provided in the lease for the last seven (7) years.FIFTEENTH: In Vita v. Dol-Fan, III, Inc. 852 N.Y.S.2d 589 the Appellate Term held that it could be inferred from the fact that the Tenant had remained in possession for nine months following the expiration of the lease that same had been expressly or implicitly extended.SIXTEENTH: At this juncture, consequently, the Petitioner, by his own conduct, has extended the original lease between the parties which he prepared."

In opposition to the motion to dismiss, Petitioner submits the Affirmation of attorney Jamie D. Ezratty, dated July 23, 2017, and the Affidavit of Petitioner Albert Gennarelli, sworn to on July 25, 2017.

Petitioner states in his Affidavit that he listed the premises with a local real estate broker. [*3]The broker secured Respondent as his new tenant pursuant to the written lease herein, which the broker drafted. In paragraph 4 of his Affidavit, Petitioner explains that the written lease was extended each year as follows:

"When the lease expired on April 30, 2010, Respondent and I agreed that he would remain at the premises for an additional one year term at the original monthly rent of $1,300.00. We continued to do so again each year until April 30, 2014."

Petitioner avers that he stopped renewing the yearly extension in 2014 due to Respondent's erratic behavior. However, Petitioner states that he did offer to allow Respondent to remain as a month-to-month tenant with a monthly rent of $1,400.00 instead of $1,300.00, but Respondent refused to pay the increase.

Petitioner claims that he attempted to raise the monthly rent in April 2015 to $1,500.00, but Respondent refused the increase. Petitioner alleges that again, in 2016, he tried to increase the monthly rent to $1,600.00, but to no avail.

As a result of the foregoing, Petitioner claims that Respondent is liable for $8,100.00 of back rent. Furthermore, Petitioner posits that:

"It is clear from the refusal of Respondent to agree to a rent increase, that he and I have never had a meeting of the minds with respect to a lease renewal. The lease clause upon which this motion is based could only be enforced if it outlined the terms of the renewals or if Respondent and I came to an agreement as to such terms. We never have.I am now in the position of having a disgruntled, unstable, frankly frightening man occupying my property at well below market use and occupancy, refusing to leave, refusing to pay market rates, and wreaking havoc on my life. Given his unstable and incompetent condition, combined with the presence of a gas stove on premises, I view Respondent as an unquestionably high risk to himself, the property (both occupied by him and adjacent tenant), as well as other individuals in the immediate vicinity of the cottage. I would also add that Respondent has had some health issues making it necessary on at least one late night occasion to be rushed to a hospital emergency room. He has repeatedly failed to provide contact information of anyone who can act as his next of kin. I cannot imagine any interpretation of the law that would require me to rent to him in perpetuity at terms that only he can conspire. To find in his favor would amount to an unlawful 'taking' of my rights to my own property.Petitioner is imploring this Court to end this madness and relieve Petitioner of the unfair obligation to spend thousands of dollars in legal fees to evict a former tenant who refuses to leave."

Petitioner's counsel attacks the Respondent's moving papers as devoid of an affidavit by [*4]someone with personal or "first hand knowledge" of the facts, such as Respondent or his Guardian ad litem. Petitioner contends that the Affirmation of Respondent's attorney is insufficient for dismissal.

Petitioner's counsel urges that paragraph 8 of the Addendum is unenforceable because the necessary elements to form a lease are missing.


Does paragraph 8 of the Addendum to the Lease require dismissal of the holdover proceeding?

Paragraph 8 of the Addendum provides that the "Tenant can remain in the house as long as Tenant needs," and that "Tenant must be offered a renewal of the Lease."

In Mur-Mil Caterers v. Werner, 166 AD2d 565, 560 N.Y.S.2d 849 (2nd Dept 1990), the Court set forth the standard that must be met to formulate a valid lease of real property:

"To constitute a valid agreement for the lease of real property, the parties must have reached final agreement upon all its essential terms, without reservation of any term for future negotiations (see, Kalker v. Columbus Prop., 111 AD2d 117, 489 N.Y.S.2d 495). This is especially true of the amount to be paid for rent (see, Martin Delicatessen v. Schumacher, 52 NY2d 105, 436 N.Y.S.2d 247, 417 N.E.2d 541). The alleged agreement states that rent was to be 'predicated upon a normal increase'. We find that the rent figure is not ascertainable by an objective standard, and thus the purported lease fails for indefiniteness (see, Martin Delicatessen v. Schumacher, supra)."

Likewise, in Davis v. Dinkins, 206 AD2d 365, 613 N.Y.S.2d 933, (2nd Dept 1994), the Court stated that the essential terms to formulate a lease agreement include the area to be let, duration of rental, and rent to be paid; the foregoing are based upon objective standards. The Court ruled that no lease agreement was reached because neither the area to be leased nor the duration of the lease were agreed upon.

Similarly, in Seiden v. Francis, 184 AD2d 904, 905, 585 N.Y.S.2d 562 (3d Dept 1992), the Court held that no lease agreement was made because the essential term of the rent to be paid was too indefinite to formulate a binding agreement:

"We reverse. Upon a review of the record and relevant law, we are persuaded that judgment should have been granted in petitioners' favor due to the indefiniteness of the lease renewal clause at issue. It is well settled that 'a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable' (Martin Delicatessen v. Schumacher, 52 NY2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). The rule is particularly applicable when the rental or sale amount of real property is the missing term, [*5]as it is in the case at bar (see, id., at 110, 436 N.Y.S.2d 247, 417 N.E.2d 541). The unambiguous language of the renewal clause reveals that at the time the lease was originally entered into there was no agreement between the parties as to what rent would be appropriate if respondent chose to renew her lease. There was only an agreement to negotiate in the future. Unlike the situations in other cases where the four corners of the leases or contracts themselves contain a procedure whereby the missing term can be reasonably supplied (see, e.g., Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 92, 571 N.Y.S.2d 686, 575 N.E.2d 104; Cobble Hill Nursing Home v. Henry & Warren Corp., 74 NY2d 475, 483, 548 N.Y.S.2d 920, 548 N.E.2d 203, cert. denied 498 U.S. 816, 111 S. Ct. 58, 112 L. Ed. 2d 33; Matter of Oak Beach Inn Corp. v. Town of Babylon, 162 AD2d 689, 690, 557 N.Y.S.2d 404), in this case the lease contains no means whereby the rental amount 'can be determined objectively without the need for new expressions by the parties' (Cobble Hill Nursing Home v. Henry & Warren Corp., supra, at 483, 548 N.Y.S.2d 920, 548 N.E.2d 203; see, Ashkenazi v. Kelly, 157 AD2d 578, 579, 550 N.Y.S.2d 322) (footnote omitted).Consequently, because the renewal clause is too indefinite to be enforceable, petitioners should be granted a judgment awarding them possession of the premises and a warrant of eviction."

On the other hand, in Bernstein v. 1995 Associates, 185 AD2d 160, 586 N.Y.S.2d 115 (1st Dept 1992), the Court modified the judgment of the Supreme Court by reinstating the causes of action dismissed. The lower court dismissed the causes of action because it determined that the letter in question was an agreement to agree, and was too indefinite to be enforceable. The First Department disagreed, holding that the subject letter constituted a valid agreement because it contained the area to be leased, the duration of the lease, and the price to be paid determined by fair market value.

In Cowen and Co., LLC v. Fiserv, Inc., 141 AD3d 18, 31 N.Y.S.3d 494 (1st Dept 2016), the plaintiff, an investment bank, was retained to advise defendant concerning the potential acquisition of another company. Plaintiff was to be paid a "transaction fee" based upon standards consistent with investment banking industry practice for "transactions of comparable complexity, level of analysis and size." The Court held that the agreement was not defeated by the doctrine of definiteness since it could rely upon commercial or trade practice to determine the level of compensation due. Phased differently, the pricing could be "supplied from public price indices and industry practice."

Applying the above case law to the situation sub judice, this court finds that paragraph 8 of the Lease Addendum is too indefinite to impose a contractual obligation upon Petitioner. Paragraph 8 constitutes an agreement to agree, and is rendered unenforceable by the doctrine of definiteness. The paragraph is missing essential terms, i.e., price to be paid and duration of the lease.

Respondent contends that Petitioner has extended the lease a year by accepting the rent from Respondent. In support, Respondent relies upon Vita v. Dol-Fan, III, Inc., 18 Misc 3d 130, 852 N.Y.S.2d 589 (9th and 10th Jud Dists 2007). However, Vita is factually distinguishable from the matter before this court.

In Vita, the lease provided for an option to extend the term of the lease for an additional 5 years. Petitioner contended that Respondent was a month-to-month tenants and had not effectively invoked the option to extend the lease for 5 years. The tenant claimed that the option had been executed and the lease extended for 5 years, based upon conversations between the parties and the acceptance of rent for 9 months after the initial lease had expired. The Court agreed with the tenant, and held that the 5-year lease had been effectively extended. The Court further ruled that by its terms, the no-waiver clause only applied to breaches of the lease, and not to the option extension.

Real Property Law §232-C provides that a tenant becomes a month-to-month tenant after expiration of the lease, by the landlord accepting rent unless the agreement provides otherwise. In the case at bar, Respondent became a month-to-month tenant after Petitioner stopped extending the lease for a year. There is no language in paragraph 8 of the Lease Addendum providing for a further extension of the lease beyond a month by Petitioner accepting rent.

Finally, this court finds that Petitioner offered Respondent a renewal lease, and thereby satisfied paragraph 8 of the Addendum.


The motion to dismiss is denied. This case is scheduled for trial on October 10, 2017, at 10:00 a.m. before the undersigned.

So Ordered:

/s/ Hon. Scott Fairgrieve


Dated: September 13, 2017